Heneghan v Manchester Dry Docks Ltd & Ors

In a multi-defendant asbestos-related lung-cancer claim, causation remains a unitary concept, although the inquiry may conveniently be analysed in two stages. The claimant must prove causation against each defendant on conventional principles, including material contribution to the damage, unless the exceptional Fairchild approach applies. There is no intermediate category permitting proof merely that a defendant materially increased the risk while avoiding the requirements of that exception. Lung cancer is legally distinguishable from mesothelioma and diseases involving gradual dust accumulation, although the Fairchild exception may apply where its conditions are satisfied. Where it applies, liability is apportioned in accordance with Barker.

The deceased developed and died from lung cancer after sequential employment by six defendants and earlier employers, during which he was exposed to asbestos. Liability had been admitted, and the only live issue was whether each defendant was liable for the full indivisible injury or only for its proportion of the total exposure.

The parties agreed that occupational asbestos exposure, rather than smoking, had caused the cancer. Each sued defendant was responsible for less than 51 per cent of the total asbestos exposure. The central issue was whether causation against each defendant could be established by inferring material contribution from the defendant’s contribution to the exposure or increased risk.

1. Outcome. Judgment was entered for the claimant, but recovery was limited to £61,600, representing the defendants’ agreed aggregate exposed share of 35.2 per cent.
2. There are only two relevant categories of case. The first applies conventional principles, requiring proof that the defendant caused the whole damage or a material part of it. The second applies the exceptional Fairchild principles, under which proof of a material increase in risk may suffice. The proposed intermediate category does not exist: it is legally the same as the Fairchild extension.
3. Causation is unitary. The distinction between the “what” question of medical causation and the “who” question of attribution between defendants is a convenient analytical device. It does not create separate legal categories or permit a lower standard of proof at the attribution stage.
4. The evidence established on the balance of probabilities that occupational asbestos exposure caused the lung cancer. It did not establish that any individual defendant’s exposure, each being substantially below 51 per cent, caused the cancer or materially contributed to the damage. The material-contribution principle in Bonnington Castings could not be used for this purpose. Lung cancer is not analogous to pneumoconiosis, where accumulated dust directly contributes to a continuous disease process.
5. The legal conditions for the Fairchild exception were capable of being satisfied in a lung-cancer case. Lung cancer and mesothelioma were not treated as medically identical, but they were legally indistinguishable for this purpose. If the exception did not apply, the result would have been zero recovery rather than full recovery.
6. Since the Fairchild extension applied, the apportionment principles in Barker v Corus UK Ltd governed. The agreed apportionment therefore determined the amount recoverable.

This was a first-instance trial. Liability had previously been admitted, and judgment entered against the defendants on 21 December 2012. Master McCloud ordered trial of the causation and allocation issues. The present court determined the remaining issue and entered judgment for £61,600.